Employer’s obligation to protect employees from bullying

Employers have a duty to protect employees from workplace bullying and harassment

Colin Gibson
Question: What obligations does an employer have to protect a worker from bullying? We have a situation where the bullying by co-workers is not overt, but consists of exclusionary behaviour such as not speaking to the employee. The employee has tried to resolve this situation on her own without success. She claims it is now affecting her morale and mental health. Do we have an obligation to act?

Answer: Bullying is now recognized as a significant issue that can have serious ramifications in the workplace. In many cases, employers have a duty to protect employees from workplace bullying and harassment, and to establish effective mechanisms for the filing and handling of complaints.

Workplace bullying may constitute a violation of human rights legislation if it relates to a prohibited ground of discrimination such as age, sex or disability. In such circumstances, employers must take active steps to prohibit and prevent such discrimination, and to deal with it effectively if it occurs.

Bullying that does not engage a prohibited ground of discrimination is usually considered a form of personal harassment, which may also trigger duties and liabilities on the part of the employer. In some workplaces, an employer may have policies that define and prohibit bullying and personal harassment. In unionized settings, the collective agreement may contain provisions prohibiting such conduct and setting out a complaint and dispute resolution procedure. In Burnaby Villa Hotel, the arbitrator defined personal harassment as being generally accepted in collective bargaining relationships in British Columbia: “Objectionable conduct or comment directed towards a specific person(s), which serves no legitimate work purpose and has the effect of creating an intimidating, humiliating, hostile or offensive work environment.”

In addition to policy and collective agreement provisions, duties relating to the protection of employees from workplace bullying may be imposed by statute or arise at common law.

Quebec and Saskatchewan have statutory provisions that protect employees who are psychologically harassed at work. Quebec’s Labour Standards Act grants every employee the right to a work environment free from psychological harassment, which is defined as “any vexatious behaviour in the form of repeated and hostile and unwanted conduct, verbal comments, actions or gestures that affect an employee’s dignity or psychological or physical integrity and results in a harmful work environment for the employee.”

Quebec employers are required to take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it. Saskatchewan has amended its occupational health and safety legislation effective Oct. 1, 2007, to prohibit harassment that adversely affects a worker's psychological or physical well-being, and the perpetrator knows or ought to reasonably know would cause the worker to be humiliated or intimidated. The harassment can be either repeated conduct or a single serious occurrence that has caused a lasting harmful effect. But it can’t be a reasonable action taken by the employer or supervisor relating to the management and direction of the employer's workers or the place of employment. Saskatchewan employers are required to develop and implement a written harassment policy that meets requirements prescribed by regulation and to ensure, as much as is reasonably practicable, workers are not exposed to harassment.

In common law, an employer has a duty to provide a civil and respectful workplace. A failure to provide such a work environment may be found to be a constructive dismissal: Stamos v. Annuity Research & Marketing Services Ltd. In Hanni v. Western Road Rail Systems, the court ruled “a fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity” and “an employee is entitled to decent treatment at the hands of his or her employer.”

The recent decision in Sulz v. Canada (Attorney General) has broadened the scope of an employer’s potential liability for workplace bullying. The court awarded Nancy Sulz, a former RCMP constable, $950,000 in damages on the basis of negligent infliction of mental suffering by her supervisor and other officers. The acts of bullying, which took place over a course of about 16 months, included unjustified and harsh criticism, and rude, insensitive and hurtful comments.

It also included giving Sulz the “silent treatment” when she attempted to deal with the situation. These actions resulted in Sulz suffering severe clinical depression, to the point where she was forced to go on permanent disability leave. The court found the employer and the supervisor owed a duty of care to Sulz to ensure she could work in a harassment-free environment. As that duty had clearly been breached, she was entitled to $125,000 in general damages for the mental stress and depression she continued to suffer, $225,000 for past lost wages and $600,000 in future lost wages.

Given these developments in the law, employers are well advised to take active and definitive steps to prevent bullying and other forms of personal harassment in the workplace. Such steps usually include implementing an appropriate harassment policy, providing training to supervisors and employees and dealing promptly and effectively with complaints. When an employer becomes aware of situation involving workplace bullying, it should conduct a fair and thorough investigation. If it finds bullying has occurred, it must take appropriate preventative and remedial steps to address the situation.

For more information see:

Burnaby Villa Hotel, [1994] B.C.C.A.A.A. No. 147 (B.C. C.A.).
Stamos v. Annuity Research & Marketing Service Ltd., (2002 CarswellOnt 1600 (Ont. S.C.J.).
Hanni v. Western Road Rail Systems (1991) Inc., 2002 CarswellBC 651 (B.C.S.C.).
Sulz v. Canada (Attorney General), 2006 CarswellBC 141 (B.C.S.C.).

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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